State v. Garcia
| Decision Date | 11 June 1962 |
| Docket Number | No. 2,No. 49013,49013,2 |
| Citation | 357 S.W.2d 931 |
| Parties | STATE of Missouri, Respondent, v. Santos GARCIA, Appellant |
| Court | Missouri Supreme Court |
No attorney of record.
Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
The defendant was convicted of the offense of forcible rape and was sentenced to ten years in the custody of the Department of Corrections in accordance with the jury's verdict. His motion for new trial was overruled and he appealed. The defendant was represented throughout his trial by court-appointed counsel. After the transcript of the record on appeal was filed in this court, the attorney was called into the Armed Forces and was permitted to withdraw as the defendant's attorney. Thereafter, the defendant was granted leave to file a brief within thirty days after submission of the case but none was filed. Therefore, the appeal is before us on the transcript of the record and the state's brief. Our review of the case will be on the specifications of error properly preserved in the defendant's motion for a new trial.
There was substantial evidence to prove these essential facts: The prosecutrix was a seventy-year-old woman who occasionally worked in a tavern on South Broadway in the City of St. Louis while the owners, who were husband and wife, were away tending to their personal affairs and other business. The tavern consisted of two rooms connected by a door of ordinary width. The main room in which the bar was located was adjacent to the street; the back room was used primarily as a kitchen. The kitchen also had an outside door which was kept locked.
On February 27, 1961, the prosecutrix opened the tavern at about 1:30 p. m. Shortly thereafter the defendant and a companion (identified only as Joe) entered the tavern and took seats at the bar; the defendant ordered and was served a bottle of beer and Joe took a glass of beer. The defendant requested that the prosecutrix cash a $25 check which she refused to do. After consuming their drinks, the defendant and Joe left the tavern but returned in about a half an hour and each ordered and was served another drink. The defendant again sought to have his check cashed and the prosecutrix again refused. Shortly thereafter Joe left the tavern and the prosecutrix was alone with the defendant.
The defendant then renewed his attempt to get the prosecutrix to cash his check and when she again refused he came around behind the bar. He got behind the prosecutrix, grabbed her around the waist and began pushing and shoving her towards the kitchen. The prosecutrix screamed and tried to escape from the defendant by holding onto the bar and pulling herself away. The defendant jerked her away from the bar and forced her into the kitchen. There she tried to escape through the outside kitchen door but was unable to open it. By this time the prosecutrix was 'all out of breath'. The defendant shoved her into a position facing the sink, pulled up her dress from the back, and inserted his penis in her rectum. She continued to protest and struggle but could not escape. The defendant then turned her away from the sink and forced her face downward onto a table and pulled her dress up and her pants down. While she was in this position, he stood behind her and inserted his penis in her vagina and had a discharge. Thereafter the defendant and the prosecutrix returned to the main barroom and the defendant again insisted that she cash his check. When she refused to do so, he came behind the bar and opened the cash register; she pushed it shut. He reopened the cash register, took out some money, and again grabbed the prosecutrix and shoved her into the back room. He again forced her over the table in the same manner as before and again inserted his penis in her vagina.
When they returned to the barroom, the defendant wrote on a piece of paper, 'I, Tony Garcia did not rape you,' and on the other side of the same paper, 'I Tony Garcia, did not take money out of the cash register'. He directed the prosecutrix to sign the paper and when she refused to do so he threatened to take her in the back room and commit further assaults on her. She then signed the paper using her maiden name; the defendant took possession of the paper and she never saw it again. The defendant then left the tavern saying that he would be back tomorrow. When the defendant was gone, the prosecutrix locked the tavern and went to a nearby street corner and awaited the return of the owners who lived above the tavern. They returned about 6:30 p. m. and the prosecutrix told the wife what had happened. The wife told her husband and he notified the police. The prosecutrix was taken to a hospital for examination and then to the police station. She testified at the trial that she did not call the police directly because she did not want them to come to her home because she had a daughter who was mentally ill. At the trial the prosecutrix identified the defendant as her assailant. She also identified a pair of underpants which was Exhibit 2, as the ones she had on and which were torn on the day in question. A serologist testified that she ran tests which disclosed that there was seminal fluid on the underpants. On the morning following the assault, members of the St. Louis Police Department went to the defendant's residence to arrest him but he was not there. They returned two or three times but were unable to locate him. About two weeks after the happening, the defendant was arrested in Baytown, Texas, and was returned to St. Louis.
The defendant did not testify nor offer any evidence. He moved for a directed verdict of acquittal which was overruled. The evidence was sufficient to sustain the charge of forcible rape as alleged in the information, and the court properly overruled the defendant's motion for a directed verdict. Sections 546.330 and 559.260 RSMo 1959, V.A.M.S.; State v. McMillian, Mo., 338 S.W.2d 838; State v. Chandler, Mo., 314 S.W.2d 897.
Four of the specifications of error in the motion for new trial are insufficient to preserve anything for review. Supreme Court Rule 27.20, V.A.M.R., provides that the motion for new trial must set forth in detail and with particularity the specific grounds or causes therefor. See also Section 547.030 RSMo 1959, V.A.M.S. The following allegations of the motion for new trial fail to comply with the rule in that they are not sufficiently definite to preserve anything for review: The verdict and judgment in this case are against the weight of the evidence, against the greater weight of the evidence, and against the concrete and substantial evidence, and the verdict is the result of bias and prejudice on the part of the jury. State v. Roberts, Mo., 332 S.W.2d 896, 898. Accordingly they will be disregarded.
State's Exhibit 1 was a scale drawing or plat of the premises where the tavern was located. It was identified by a trained police officer who...
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